Monitoring Inmate-Attorney Communications: Sixth Amendment Implications

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Monitoring Inmate-Attorney Communications:
Sixth Amendment Implications
T.J. Halstead
Legislative Attorney
American Law Division
Citing the need to ensure that individuals in federal custody are not able to facilitate
acts of terrorism through conversations with an attorney, the Department of Justice’s
Bureau of Prisons instituted an interim rule on October 30, 2001, authorizing the
monitoring of attorney-client communications when the Attorney General determines
that reasonable suspicion exists to believe that such communications might facilitate acts
of violence or terrorism. This report provides an overview of the provisions of the
interim rule, as well as a brief synopsis of Sixth Amendment implications regarding
intentional intrusion into the attorney-client relationship.
On October 31, 2001, the Department of Justice’s Bureau of Prisons published an
interim rule in the Federal Register, effective October 30, 2001: (1) altering regulations
regarding the imposition of “special administrative measures” designed to prevent the
dissemination of information by certain inmates that could endanger national security or
lead to acts of violence and terrorism; and (2) authorizing the monitoring of attorney-client
communications, subject to specific procedural safeguards, upon certification by the
Attorney General that reasonable suspicion exists to believe that an inmate may use such1
communications to further or facilitate acts of violence or terrorism.
Overview of the Interim Rule
The interim rule makes several changes to provisions in the Code of Federal
Regulations authorizing the imposition of “special administrative measures with respect
to specified inmates,” upon certification by senior intelligence or law enforcement officials
that such measures were necessary to prevent the dissemination of classified information
that could endanger national security (28 C.F.R. §501.2) or other information that could

1 66 FR 55062, Oct. 31, 2001.
Congressional Research Service ˜ The Library of Congress

facilitate acts of violence and terrorism (28 C.F.R. §501.3).2 These special administrative
measures can include housing the inmate in administrative detention, limiting
correspondence and visitation, media interviews and use of the telephone, to the extent
such limitations are “reasonably necessary.” Regarding the potential disclosure of
classified information that could threaten national security, the interim rule extends the
initial period of time such measures may be imposed from a period of 120 days to a period
up to one year, as designated by the Director of the Bureau of Prisons. Also, whereas the
original regulation allowed for 120 day extensions of special administrative measures upon
certification that the factors identified in the original certification continued to exist, the
interim rule allows the Director to extend the period for imposition of such measures in
increments of up to one year upon a subsequent certification that there is a danger of3
disclosure. Relatedly, the interim rule extends the initial imposition period applicable for
the prevention of acts of violence and terrorism from 120 days to a period of up to one
year. Likewise, the interim rule alters the extension period from 120 days to periods of up
to one year, upon subsequent certification that the inmate’s communications could result4
in harm.
Most significantly, the interim rule adds a new provision to §501.3 authorizing the
monitoring or review of communications between an inmate and his or her attorneys in
“any case where the Attorney General orders, based on information from the head of a
federal law enforcement or intelligence agency that reasonable suspicion exists to believe
that a particular inmate may use communications with attorneys or their agents to further
or facilitate acts of terrorism.”5 The interim rule establishes that absent prior court
authorization, the Director of the Bureau of Prisons is required to provide written notice
to the inmate and attorneys involved prior to the initiation of any monitoring or review.6
Also, the interim rule provides that the BOP Director, with the approval of the Assistant
Attorney General for the Criminal Division, “shall employ procedures to ensure that all
attorney-client communications are reviewed for privilege claims” and that any privileged
material not be retained during the course of the monitoring.
In an effort to protect the attorney-client privilege and “to ensure that the
investigation is not compromised by exposure to privileged material relating to the
investigation or defense strategy,” the interim rule provides for the designation of a
“privilege team” comprised of individuals not involved in the underlying investigation to
monitor communications. Finally, the interim rule provides that the privilege team may not
disclose any information obtained during monitoring “unless and until” the disclosure has
been approved by a federal judge, except in instances where the head of the team

2 Id. at 55062. The interim rule also expands the definition of inmate to include “all persons in the
custody of the Federal Bureau of Prisons or Bureau contract facilities, including persons charged
with or convicted of offenses against the United States; D.C. Code felony offenders; and persons
held as witnesses, detainees, or otherwise.” 28 C.F.R. §500.1(c).
3 66 FR 55062, 55065.
4 Id. at 55063, 55065-66.
5 Id. at 55066.
6 Id. at 55066; §501.3(d)(2).

determines that the information obtained indicates that an act of violence or terrorism is
imminent. 7
Sixth Amendment Implications
The Sixth Amendment to the Constitution of the United States provides that “[i]n all
criminal prosecutions, the accused shall enjoy the have the assistance of counsel
for his defense.”8 While the “fundamental justification” for this provision is the general
inability of a criminal defendant to make “informed choices about the preparation and
conduct of his defense,” the Sixth Amendment has also been held to guarantee the privacy
of communications with counsel, as “[f]ree two way communication between client and
attorney is essential if the professional assistance guaranteed by the Sixth Amendment is
to be meaningful.”9 Accordingly, this maxim raises the question of whether the monitoring
of attorney-client communications as provided for in the interim rule could constitute an
impermissible intrusion into the attorney-client relationship, endangering an individual’s
right to effective assistance of counsel.
A. Intrusion Upon Attorney-Client Communications. In Weatherford v.
Bursey, the Supreme Court addressed Sixth Amendment concerns surrounding10
governmental intrusion into the attorney-client relationship. In Weatherford, an
undercover law enforcement agent (Weatherford) was arrested and indicted with the
defendant, Bursey, in order to protect Weatherford’s undercover status. In an effort to
obtain information helpful to Bursey’s defense, Bursey and his counsel invited
Weatherford to participate in attorney-client meetings. Still wishing to maintain his
undercover status, Weatherford participated in two such meetings but did not convey any
information regarding trial plans or strategy to his superiors or the prosecuting attorney
or his staff.11 Weatherford subsequently testified for the prosecution at Bursey’s trial, but
did not make any reference to the attorney-client meetings. Upon his conviction, Bursey
sued Weatherford under 42 U.S.C. §1983, alleging that Weatherford had communicated
defense strategies and plans to the prosecution, depriving Bursey of his right to effective
assistance of counsel. The district court rejected this argument, finding that Weatherford
had in fact not discussed or made available “any details or information regarding the
plaintiff’s trial plans, strategy, or anything having to do with the criminal action pending12
against the plaintiff.”
The Court of Appeals for the Fourth Circuit reversed, imposing a rule that
“‘whenever the prosecution knowingly arranges and permits intrusion into the attorney-
client relationship the right to counsel is sufficiently endangered to require reversal and a

7 Id. at 55066; §501.3(d)(3).
8 U.S. Const., Amdt. VI.
9 United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978); see also, United States v. Rosner, 485
F.2d 1213, 1224 (2nd Cir. 1973), cert. denied, 417 U.S. 950 (1974) (“the essence of the Sixth
Amendment privacy of communication with counsel.”).
10 Weatherford v. Bursey, 429 U.S. 545 (1977).
11 Id. at 548.
12 Id. at 548.

new trial.’”13 The Supreme Court reversed this holding, determining that there had been
no violation of the Sixth Amendment. While acknowledging that the privacy of attorney-
client communications is important for the meaningful realization of the Sixth
Amendment’s guarantee of effective assistance of counsel, the Court found it significant
that the government had not made the intrusion in bad faith and had not obtained any
improper information.14 Accordingly, the Court held: “[t]here being no tainted evidence
in this case, no communication of defense strategy to the prosecution, and no purposeful15
intrusion by Weatherford, there was no violation of the Sixth Amendment....”
A particularly pertinent aspect of the Weatherford decision as it relates to the present
scenario was the Court’s determination that the government had a legitimate interest in
maintaining the agent’s undercover status, thereby justifying his presence at meetings
between the defendant and his attorney.16 Subsequent to Weatherford, the lower courts
have continued to uphold governmental intrusions necessitated by legitimate law
enforcement interests.17 Furthermore, in United States v. Mastroianni, the Court of
Appeals for the First Circuit indicated that the government could intrude into the attorney-
client relationship upon establishing a “substantial record” that there is a possibility of
criminal activity.18 Based upon these factors, it is arguable that the interim rule’s
requirement that there be a “reasonable suspicion” of potential terrorist activity could be
interpreted as sufficient to establish a legitimate governmental interest in monitoring the
communications of certain individuals.
Furthermore, the effective operation of “privilege teams” as provided for in the
interim rule might serve to obviate judicial concerns regarding the potential of prejudice
that arises from governmental intrusion into the attorney-client relationship. Specifically,
courts deciding intrusion cases subsequent to Weatherford have established different
standards regarding which party bears the burden of establishing the absence or existence
of prejudice.
In United States v. Steele, for instance, the Court of Appeals for the Sixth Circuit
determined that “even where there is an intentional intrusion by the government into the
attorney-client relationship, prejudice to the defendant must be shown before any remedy
is granted.”19 Upon determining that a governmental informant who had intruded upon
defense preparations had not divulged any information obtained from the conferences, the
court held that there was no indication that the defendant was “denied effective assistance

13 Id. at 549 (quoting Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir. 1975)).
14 Id. at 557-558.
15 Id. at 558.
16 Id. at 557.
17 See United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985); United States v. Costanzo,

740 F.2d 251, 257 (3d Cir. 1984); United States v. Singer, 785 F.2d 228, 232 (8th Cir. 1986).

18 United States v. Mastroianni, 749 F.2d 900, 905-906 (1st Cir. 1984).
19 United States v. Steele, 727 F.2d 580, 586 (6th Cir. 1984).

of counsel.”20 Under this approach, a privilege team operating effectively pursuant to the
interim rule might persuade a reviewing court to determine that the monitoring is
presumptively valid, absent an indication of improper disclosure of privileged information.
Relatedly, in the event of such a disclosure, this approach might lead a court to require a
showing of prejudice prior to finding a Sixth Amendment violation.
Conversely, other courts have held that a per se violation occurs in instances where
there is an intrusion into the attorney-client relationship that results in the disclosure of
information to the prosecution, irrespective of a finding of prejudice. In United States v.
Levy, for example, the Court of Appeals for the Third Circuit held that “the inquiry into
prejudice must stop at the point where attorney-client confidences are actually exposed to
the government enforcement agencies responsible for investigating and prosecuting the
case. Any other rule would disturb the balance implicit in the adversary system and thus
would jeopardize the very process by which guilt and innocence are determined in our
society.”21 Similarly, in Schillinger v. Haworth, the Court of Appeals for the Tenth Circuit
held that there was no need to determine whether a governmental intrusion resulting in the
disclosure of information to the prosecution was prejudicial to the defendant, as such
“purposeful intrusion on the attorney-client relationship strikes at the center of protections
afforded by the Sixth Amendment.”22 Under this standard, it would appear that while
secure monitoring by a privilege team might garner court approval, any indication of
improper disclosure could result in an automatic determination that the Sixth Amendment
had been violated.
In light of the aforementioned factors, it would appear that Weatherford and
subsequent cases requiring the demonstration of prejudice prior to establishing a Sixth
Amendment violation may lend credence to the notion that the government may monitor
attorney client communications, so long as there is a justification for the intrusion, and the
information obtained is not used to the prosecution’s advantage in its case. However, it
may likewise be argued that the legal rationales discussed above do not support such a
conclusion, given that they do not appear to contemplate the Sixth Amendment
implications of systematic monitoring.
B. The “Chilling Effect” of Systematic Monitoring. It is important to note
that the aforementioned cases address discrete instances of governmental intrusion into the
attorney-client relationship. Even in situations where an intentional intrusion was upheld,
the intrusion was of a temporary nature, with the focus of the judicial inquiry centering on
whether the intrusion resulted in the production of information that was prejudicial to the
defense. While the holdings in these cases may be cited for the proposition that
governmental intrusions are not inherently violative of the Sixth Amendment, they shed
little light on the concern that pervasive monitoring of attorney-client communications will
have a chilling effect on the full and open consideration of the legal options available to a
covered inmate.

20 Steele, 727 F.2d at 587.
21 Levy, 577 F.2d at 209.
22 Schillinger v. Haworth, 70 F.3d 1132, 1141 (10th Cir. 1995).

As such, the calculus traditionally employed by the courts to identify whether a
particular intrusion constitutes a Sixth Amendment violation would not appear to be fully
applicable to the present scenario. There do not appear to have been any cases that directly
address the Sixth Amendment implications of the type of monitoring authorized by the
interim rule. There is indication, however, that courts may be hesitant to allow such
pervasive monitoring, given its potentially chilling effect on the attorney-client relationship.
In Weatherford, for instance, the Supreme Court noted the government’s
acknowledgment that “the Sixth Amendment’s assistance-of-counsel guarantee can be
meaningfully implemented only if a criminal defendant knows that his lawful preparations
for trial are secure against intrusion by the government, his adversary in the criminal
proceeding.”23 The Court went on to state that “[o]ne threat to the effective assistance of
counsel posed by government interception of attorney-client communications lies in the
inhibition of free exchanges between defendant and counsel because of the fear of being24
overheard.” Furthermore, the Court of Appeals for the Seventh Circuit, explaining the
importance of privacy in attorney-client communications, has indicated that systematic
monitoring of such communications could raise potentially fatal Sixth Amendment
concerns. Specifically, in United States v. DiDomenico, the court addressed at length the
hypothetical implementation of a governmental policy to tape all conversations between
criminal defendants and their lawyers for archival purposes, without turning them over to
the prosecution.25 The court opined that such systematic monitoring of attorney-client
communications would violate the Sixth Amendment, as the knowledge of continuous
surveillance would inhibit a client’s willingness to engage in open and full discussion with
his or her attorney.26 Applying these considerations to the interim rule, it is possible that
a reviewing court would determine that an inmate’s privacy interests are not protected
sufficiently. Specifically, while the application of procedural safeguards such as the use of
a “taint team” could mitigate judicial concern regarding the impermissible disclosure of
privileged information to the prosecution, it is possible that a reviewing court would find
such measures to be of little value in ameliorating the chilling effect on attorney-client
communications that is likely to arise upon application of the interim rule.
These factors, viewed in relation to Weatherford and its progeny, indicate that
reviewing courts may reach different conclusions regarding the Sixth Amendment validity
of the monitoring plan as implemented in the interim rule.

23 Weatherford, 429 U.S. at 554, n. 4 (quoting Brief for United States in Hoffa v. United States,
O.T. 1966, No. 32, p. 71, quoted in Brief for United States as Amicus Curiae in Weatherford v.
Bursey, 429 U.S. 545, p. 24, n. 13).
24 Weatherford, 429 U.S. at 554-555, n. 4.
25 United States v. DiDomenico, 78 F.3d 294 (7th Cir. 1996), cert. denied, 519 U.S. 1006 (1996).
26 Id. at 299. The court stated that such a practice “would, because of its pervasiveness and
publicity, greatly undermine the freedom of communication between defendants and their lawyers
and with it the efficacy of the right to counsel, because knowledge that a permanent record was
being made of the conversations between the defendants and their lawyers would make the
defendants reluctant to make candid disclosures. (Totalitarian-style continuous surveillance must
surely be a great inhibitor of communication).”